Early in my career, the “rules” of evidence were derived by reading case-law and the handful of statutes that addressed privilege and competence. If you wanted to know the “rules”, you had to research and read case-law. The only ready compendium were books like Graham’s Handbook on Federal Evidence. Today, litigators in every state and federal.court have a set of rules modeled after the ones used in federal courts.
If you want to master the rules, you need to read them through, beginning to end before every bench or jury trial. This will remind you of potential problems you need to address in you motions in limine, your exhibits and witnesses‘ testimony. You will spot problems with evidentiary proof you might otherwise overlook in your case and that of your opponent. You will better understand the policies behind the rules and the significance of the various sections of rules that deal with preliminary questions of fact, objections, offers to prove, judicial notice, relevancy, character evidence, impeachment, lay and expert witnesses, hearsay, authentication and alternate forms of proof approved for use at trial to prove a document’s content. Eventually, you will be able to cite the significant rules by number which will enhance your credibility with the judge and jury. It will also unsettle your opponent and inhibit his willingness to object to your questions, witnesses and exhibits since he won’t want to look bad in front of the jury by having his objection overruled. If you have a smart phone, there are applications that will contain the Rules of Evidence that you can readily reference such as Lawbox.
During the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.
What is a trial notebook you may ask? Well my trial notebook represents twenty plus years of knowledge I have gained from my research, review of advance sheets, jury selection issues, trial procedure and evidentiary issues. I keep a three-ring binder with lettered tabs from A to Z. I use re-enforced three-ring paper and make notes on matters I come across which might arise during a trial and then file them under the right heading and index it under the proper lettered tab. Below is an example of such a note I have listed alphabetically under “P” in my trial notebook:
Privilege – Work Product – I.D. of Witness Statements
An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.
I especially concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.